In State of Texas v. Cardona, (ND TX, Aug. 5, 2024), a Texas federal district court in a 113-page opinion enjoined enforcement against Texas schools of a Notice of Interpretation, a Dear Educator Letter and a Fact Sheet ("Guidance Documents") issued by the U.S. Department of Education that interpreted Title IX's ban on sex discrimination to include discrimination on the basis of gender identity. The court said in part:
The Guidance Documents' interpretation of "sex" and the accompanying requirement that schools treat "gender identity" the same as biological sex flouts Title IX. The Department lacks the authority to "rewrite clear statutory terms to suit its own sense of how the statute should operate," particularly in a way that undercuts a statute's purpose.... Yet this is exactly what the Guidance Documents do. By interpreting the term "sex" in Title IX to embrace "gender identity" as distinct from biological sex, the Guidance Documents are contrary to law and exceed the Department's statutory authority....
The Guidance Documents' expanded definition of "sex" are contrary to law due to violating another rule of interpretation. That is, Congress must "speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance.'"... Known as the Major Questions Doctrine, it promotes the principle of statutory interpretation that courts should not assume Congress delegated questions of "deep 'economic and political significance'" unless done expressly....
Despite the Department's lack of authority, Defendants nonetheless maintain that Bostock supports the expanded definition of "sex." But this argument falls flat. Bostock stated without equivocation that its holding only applies to Title VII....
The Guidance Documents are substantively and procedurally unlawful in violation of the APA. They are substantively unlawful because the Department's purported interpretations of Title IX squarely conflict with the statute.... Additionally, the Guidance Documents are procedurally unlawful because they impose new substantive obligations on states and other regulated entities without adhering to the APA's notice-and-comment requirements—which were designed to ensure public participation....
